An immigrant is a foreign national who has been authorized to live and work permanently in the U.S. Those who wish to become an immigrant based on a permanent employment opportunity in the U.S., or employers wishing to sponsor someone for lawful permanent residence based on permanent employment in the U.S., must meet a number of requirements:
- First, foreign nationals and employers must determine whether the foreign national is eligible for lawful permanent residence.
- Second, most employment categories require that the U.S. employer complete a labor certification application and submit it to the federal Department of Labor (DOL).
- Third, U.S. Citizenship and Immigration Services (USCIS) must approve an immigrant visa petition filed by the employer for the person wishing to immigrate. If a labor certification is needed, the immigrant visa petition can only be filed after the DOL has approved the labor certification. The employer acts as the sponsor (or petitioner) for the applicant (or beneficiary) who wants to live and work on a permanent basis in the U.S.
- Fourth, if the applicant is already in the U.S., he or she may apply to adjust to permanent resident status. This is called adjustment of status. If the applicant is outside the U.S., he or she must complete the process at his or her local U.S. consular office. This is called consular processing.
This section provides an overview of the labor certification process, adjustment of status, and consular processing, followed by a summary of the employment-based immigrant visa categories.Return to top
LABOR CERTIFICATION OVERVIEW
A permanent labor certification means that the Department of Labor has certified to USCIS that there are no qualified U.S. workers able, willing, qualified, and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the individual will not adversely affect the wages and working conditions of similarly employed U.S. workers.
A new, streamlined permanent labor certification program (Program Electronic Review Management, or PERM) has been implemented. As of March 28, 2005, new applications must be filed under PERM online or at the appropriate National Processing Center. An employer may choose to withdraw an earlier application and refile the application for the identical job opportunity under PERM. Otherwise, applications filed before March 28, 2005, are continuing to be processed at the appropriate Backlog Elimination Center under the rules in effect at the time of filing.
To qualify for permanent labor certification:
- the employer must be hiring the foreign worker as a full-time employee;
- there must be a bona fide job opening available to U.S. workers;
- job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker's qualifications;
- the employer must document that the job description does not contain unduly restrictive job requirements, unless adequately documented as arising from business necessity; and
- the employer must pay at least the prevailing wage for the occupation in the area of intended employment.
The employer must request a prevailing wage determination from the state workforce agency (SWA) having jurisdiction over the proposed area of intended employment.
Except for a few occupations in short supply known as Schedule A (see below) and applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, employers must attest, in addition to a number of other conditions of employment, to having conducted a recruitment before filing the application.
Recruitment. Before filing the labor certification application, the employer must conduct a recruitment for U.S. workers for the job opening, either under the standards for professional occupations if the occupation is one for which a bachelor's or higher degree is a customary requirement or, for all other occupations not normally requiring a bachelor's or higher degree, under the requirements for nonprofessional occupations. The employer must show that it has conducted a recruitment in good faith by such activities as advertising the job opening adequately, making appropriate attempts to contact prospective U.S. workers, providing lawful, job-related reasons for rejecting U.S. applicants, and providing the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.
The Department of Labor is likely to audit applications and request additional information if the foreign national's qualifying work experience or education was gained while employed by the sponsoring employer, if there is a family or financial connection to the employer, if the employer paid for education or training, or if other specific issues arise. Employers should prepare documentation relating to these issues before filing the application and keep the documentation for five years. If the Department of Labor is not satisfied that the recruitment has been conducted in a satisfactory manner, the agency may require the employer to conduct additional supervised recruitment efforts. In addition, the Department can require an employer to conduct supervised recruitment for all future applications for a period of two years.
Schedule A occupations. Schedule A is a list of occupations for which there are not a sufficient number of able, willing, qualified, and available U.S. workers. Schedule A pre-establishes that the employment of foreign workers in such occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed.
The occupations listed under Schedule A include:
- physical therapists
- professional nurses;
- individuals of exceptional ability in the sciences or arts (except performing artists - see below), including college and university teachers of exceptional ability who have been practicing their science or art during the year before application and who intend to practice the same science or art in the U.S. "Science or art" means any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree, but workers do not necessarily need to have studied at a college or university to qualify;
- performing artists, including individuals of exceptional ability in the performing arts whose work during the past 12 months required, and whose intended work in the U.S. will require, exceptional ability.
The filing date (the date the labor certification application is filed) is used by USCIS and the Department of State as the priority date for measuring a person's place in line. After the labor certification application is approved by the Department of Labor, it should be submitted to the appropriate USCIS service center along with an immigrant petition for the worker.
If the foreign national is in the U.S. with temporary work authorization, the last step in the process is to file an application to adjust status to permanent residence. If the foreign national resides outside the U.S. or is ineligible to adjust status inside the U.S., the last step is to file an immigrant visa application at the U.S. embassy or consulate in the foreign national's country of nationality or last foreign residence. This is known as consular processing.
It takes approximately several months to undergo consular process or adjustment of status. In some cases, a foreign national who is eligible for adjustment of status in the U.S. nevertheless may wish to file an immigrant visa application abroad to complete the green card process.
The Department of State's Visa Bulletin summarizes the availability of immigrant visa numbers each month. Allocations are made, to the extent possible under the numerical limitations, for the demand received in the chronological order of the reported priority dates. If the demand cannot be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive is deemed oversubscribed, and a cut-off date is set. Only applicants who have a priority date earlier than the cut-off date may be allotted a visa number. Once a visa number becomes available, prompt filing is recommended because it is possible for the cut-off dates to retrogress if a category becomes oversubscribed. The Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1770.html.
Contact your ABIL attorney for details on how to conduct a successful recruitment, apply for labor certification, prepare accompanying documentation, and obtain a green card.
For more on this topic, see [add links to ABIL attorney articles #7, 9, 10, 18]Return to top
ADJUSTMENT OF STATUS
Adjustment of status is a qualitative background check for an individual already in the U.S. who wishes to receive his or her green card here. There are numerous requirements to be eligible for adjustment of status. The most important ones require the person to have never worked illegally in the U.S. or otherwise have violated his or her status.
If the individual is filing based on an offer of permanent employment in the U.S., he or she will be required to submit an application to register permanent residence or adjust status; a form containing biographic information; a copy of the Notice of Action showing that the immigrant visa petition has been received or approved; and a medical examination form, in addition to all required supporting documentation as listed on the forms. The applicant also may submit an application for work authorization or travel if he or she wishes to work or travel while the adjustment of status application is being processed.
Contact your ABIL attorney for help with applications for adjustment of status and documentation requirements.
When an immigrant visa number becomes available, an individual filing abroad may file the immigrant visa petition at the local U.S. consular office. Although consular processing of immigrant visa petitions generally has been faster than adjustment of status application processing in the U.S., visa applications now are subjected to a higher degree of scrutiny because of post-9/11 security considerations and related delays are possible.
A comprehensive listing of links to U.S. embassies, consulates, and diplomatic missions is available at http://usembassy.state.gov/.
Contact your ABIL attorney for help with consular processing and documentation requirements.
There are five categories for granting permanent residence to foreign nationals based on employment skills: EB-1 priority workers; EB-2 workers with advanced degrees or exceptional ability; EB-3 professionals, skilled workers, and other workers; EB-4 special workers such as those in a religious occupation or vocation; and EB-5 immigrant investors.
EB-1 PRIORITY WORKER
The employment-based first preference category includes individuals with extraordinary ability (EB-1-1), outstanding professors and researchers (EB-1-2), and certain multinational executives and managers (EB-1-3).
EB-1-1: "Extraordinary ability" in the sciences, arts, education, business, or athletics is demonstrated by sustained national or international acclaim. The applicant's achievements must have been recognized in the field through extensive documentation. To be eligible for this classification, the applicant must be one of that small percentage who have risen to the very top of the field of endeavor. For example, receipt of a major internationally recognized award, such as a Nobel Prize, may qualify an applicant for an EB-1 classification. Because few individuals receive this type of award, alternative evidence of EB-1 classification based on at least three of the ten types of evidence outlined below is permitted:
- receipt of lesser nationally or internationally recognized prizes or awards for excellence;
- membership in associations in the field that demand outstanding achievement of their members;
- published material about the individual in professional or major trade publications or other major media;
- evidence that the individual has judged the work of others, either individually or on a panel;
- evidence of the individual's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;
- evidence of the individual's authorship of scholarly articles in professional or major trade publications or other major media;
- evidence that the individual's work has been displayed at artistic exhibitions or showcases;
- performance of a leading or critical role in distinguished organizations;
- evidence that the individual commands a high salary or other significantly high remuneration in relation to others in the field;
- evidence of commercial successes in the performing arts.
The worker may submit "other comparable evidence" if the criteria above do not apply.
EB-1-2: Outstanding professors and researchers are recognized internationally for their outstanding academic achievements in a particular field. In addition, an outstanding professor or researcher must have at least three years of experience in teaching or research in that academic area, and enter the U.S. in a tenure or tenure-track teaching or comparable research position at a university or other institution of higher education. If the employer is a private company, the department, division, or institute of the private employer must employ at least three persons full-time in research activities and have achieved documented accomplishments in an academic field.
Evidence that the professor or researcher is recognized as outstanding in the academic field must include documentation of at least two of the following six criteria:
- receipt of major prizes or awards for outstanding achievement;
- membership in associations that require their members to demonstrate outstanding achievements;
- published material in professional publications written by others about the individual's work in the academic field;
- participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field;
- original scientific or scholarly research contributions in the field;
- authorship of scholarly books or articles (in scholarly journals with international circulation) in the field.
EB-1-3: Some executives and managers of foreign companies who are transferred to the U.S. may qualify for this category. A multinational manager or executive is eligible if he or she has been employed outside the U.S. for at least one of the three years preceding the petition by a firm or corporation and seeks to enter the U.S to continue service to that firm or organization. The employment must have been outside the U.S. in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.
The petitioner must be a U.S. employer, doing business for at least one year, that is an affiliate, a subsidiary, or the same employer as the firm, corporation or other legal entity that employed the foreign national abroad.
No labor certification is needed for EB-1 petitions.
While an EB-1-1 individual of extraordinary ability may petition for himself or herself, the employer must file the petition for an EB-1-2 outstanding professor or researcher and an EB-1-3 multinational executive or manager.Return to top
EB-2 WORKER WITH ADVANCED
DEGREES OR EXCEPTIONAL ABILITY
The employment-based second preference category includes members of the professions holding advanced degrees or their equivalent and individuals who have exceptional ability in the sciences, arts, or business.
National interest waivers. Labor certification normally is required for individuals seeking green cards in the EB-5 category. EB-2 workers may apply to waive the labor certification requirement, however, if such a waiver would be in the national interest. To satisfy the requirements for a national interest waiver, the petition must show that:
- the foreign national's work is in an area of substantial intrinsic merit;
- the proposed benefit of the foreign national's work is national in scope; and
- the foreign national will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.
Qualified foreign physicians also may receive national interest waivers exempting them from the labor certification process. The requirements are discussed in greater detail below.
Contact your ABIL attorney for guidance through the complex process of filing for a national interest waiver.
A green card petition for a foreign professional holding an advanced degree may be filed when the job requires an advanced degree (beyond the baccalaureate) and the worker possesses such a degree or the equivalent. The petition must include documentation, such as an official academic record showing that the worker has a U.S. advanced degree or a foreign equivalent degree, or showing that the alien has a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that the worker has at least five years of progressive post-baccalaureate experience in the specialty.
Qualified foreign physicians who will be practicing medicine in a medically underserved area may also qualify for this classification. As noted, a national interest waiver exempts such a physician from the labor certification process. Evidence to support a national interest waiver for qualified foreign physicians may include:
- a full-time employment contract or, if the physician will establish his or her own practice, a sworn statement committing to the full-time practice of clinical medicine and the steps being taken to establish the practice;
- documentation that the medical services will be provided in a designated medically underserved area or a facility under the jurisdiction of the Veterans Administration;
- a letter from a federal agency or a state department of public health attesting that the physician's work will be in the public interest;
- documentation that the physician meets admissibility requirements; and
- documentation of any USCIS-issued waivers of requirements if the physician has been a J-1 nonimmigrant receiving medical training within the U.S.
There are additional requirements. Contact your ABIL representative for guidance on the process of filing for a national interest waiver.
To be classified as having exceptional ability in the sciences, arts, or business, the individual must provide documentation of three of the following six criteria:
- an official academic record showing the worker has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability;
- letters documenting at least 10 years of full-time experience in the occupation being sought;
- a license to practice the profession or certification for a particular profession or occupation;
- evidence that the worker has commanded a salary or other remuneration for services that demonstrates exceptional ability;
- membership in professional associations;
- recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.
If the above standards do not apply to the petitioner's occupation, other comparable evidence of eligibility may also be acceptable.Return to top
EB-3 PROFESSIONAL, SKILLED WORKER, OTHER WORKER
The employment-based third preference category includes professionals with a baccalaureate degree, individuals with at least two years of experience as skilled workers, and others with less than two years of experience who can perform labor for which qualified workers are not available in the U.S. This last group is known as "other workers."
Although eligibility requirements for the EB-3 classification are less stringent than those for the EB-1 and EB-2 classifications, a long backlog exists for immigrant visa numbers in the "other workers" subcategory. All EB-3 petitions require an approved labor certification.
Professionals must hold a U.S. baccalaureate degree or foreign equivalent degree that is normally required for the profession.
Skilled worker positions require at least two years of experience or training. The training requirement may be met through relevant post-secondary education. The job requirements determine whether a job is skilled or unskilled.
Other workers are in positions that require less than two years of higher education, training, or experience. Due to the long backlog, a petitioner can expect to wait many years before being granted a visa under this category.Return to top
EB-4 SPECIAL WORKER
The employment-based fourth preference category includes those in a religious occupation or vocation. Such individuals, for at least two years before applying for admission to the U.S., must have been a member of a religious denomination that has a nonprofit religious organization in the U.S., and will be working in a religious vocation or occupation at the request of the religious organization.
EB-5 IMMIGRANT INVESTORS
The employment-based fifth preference category is for investors who invest a substantial amount of money in a U.S. business and through that investment create or save at least ten jobs for U.S. workers. The normal amount required to invest is $1 million, although that amount can be reduced to $500,000 if the investment is made in a high unemployment or rural area. Of the approximately 10,000 green cards available for this preference each year, 3,000 are reserved for investors who immigrate through a "regional center," which is an entity, organization, or agency that focuses on a specific geographic area within the U.S.
To qualify for an EB-5 green card, investors must invest the required amount of capital in a new commercial enterprise that they have established. A new commercial enterprise can be:
- an original business;
- an existing business that is restructured or reorganized; or
- an existing business that is expanded by 140 percent.
An EB-5 petition must be filed with supporting documentation demonstrating that the individual:
- has established a new commercial enterprise,
- has invested the required amount of money,
- has proven the investment comes from a lawful source of funds,
- either has already created the required number of jobs or has a good business plan to create the jobs within two years,
- is actively participating in the business and, where applicable,
- is creating employment within a high unemployment or rural area.
Once the petition is approved, immigrant investors become conditional permanent residents. After two years, they must file a petition proving that they maintained their investment for two years. They then can become regular permanent residents.
Contact your ABIL attorney for details on how to apply for this visa category.Return to top